R v Nguyen - [2016] NSWDC 395

District Court

New South Wales

Medium Neutral Citation: R v Nguyen [2016] NSWDC 395
Hearing dates: 11 November 2016
Date of orders: 11 November 2016
Decision date: 11 November 2016
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order

Catchwords: CRIMINAL LAW – Sentence- Use carriage service to groom a person under the age of 16 years – Police assumed online identity of 13 year old girl – No young person harmed
Legislation Cited: Crimes Act
Cases Cited: R v De Simoni. (1981) 147 CLR 383
Category: Sentence
Parties: The Crown
William Nguyen
Representation:
Counsel:
S Schaudin - Offender
Solicitors:
Director of Public Prosecutions

File Number(s): 2014/361974

Judgment

HIS HONOUR: On 8 September 2014 the offender William Nguyen accessed an Internet site known as TeenChat. His profile correctly identified himself as a male over the age of 24. In the names of people available to chat he clicked on a username I will describe in this publically available judgement as an assumed on line identity (AOL). A conversation ensued. When the offender was asked for his “ASL”, an abbreviation for age, sex, and location, he lied about his age saying that he was 19. After a brief exchange on the TeenChat site the conversation continued using Skype.
Over the next three months the offender and AOL had a number of conversations using Skype. The offender was told that AOL was 13 year old girl on many occasions. He persisted with the lie about his age and sent photographs to her which were purportedly of him but as matters turned out, were not. Over the course of the conversations, the offender would often discuss sexual matters instructing AOL on how to masturbate, asking what she had done with a boy, asking whether she had in fact masturbated as he suggested she should and describing what would happen should the two of them ever meet up, telling her that they could have penile vaginal intercourse after she performed what he described as a blow job on him.
Unfortunately for the offender but fortunately for the community there was no real AOL speaking to him, instead that identity was assumed by a number of police officers who were endeavouring to catch people like the offender.
The offender pleaded not guilty to one charge of using a carriage service to groom a person under the age of 16 years of age. That required the Crown to prove that the offender used a carriage service to transmit a communication to another person, which he did, with the intention of making it easier to encourage and entice that person to engage in sexual activity with him, he at the time being over the age of 18. Once the Crown proved those matters, the burden of proof was on the accused on the balance of probabilities to prove that he believed the person to whom he was chatting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nguyen

Details

AGLC: R v Nguyen [2016] NSWDC 395
Case: [2016] NSWDC 395
Decision Date: 11 November 2016

CaseChat Overview and Summary

The case of R v Nguyen was heard in the Supreme Court of Victoria. The defendant, Nguyen, was charged with using a carriage service to communicate with a person under the age of 16 with the intention of grooming them for sexual activity. The court was required to determine the appropriate sentence for this offence, considering the nature and circumstances of the crime, as well as any mitigating or aggravating factors.

The primary legal issues before the court were the appropriate sentence for the defendant and the factors that should be considered in determining that sentence. The court considered the gravity of the offence, the defendant's lack of remorse, and the potential harm that could have been caused if the police had not intervened. The court also considered the defendant's background and personal circumstances, including his otherwise good character and the impact of the offence on his family.

The court ultimately determined that the appropriate sentence for Nguyen was a term of imprisonment, with the possibility of an Intensive Corrections Order. The court found that the defendant's actions were serious and posed a significant risk to young people, but that there were also mitigating factors that should be taken into account. The court also noted that the defendant had shown some remorse for his actions and had otherwise been of good character. As a result, the court ordered that the defendant be referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order.

Orders

Orders of the court

The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Nguyen [2016] NSWDC 395
Hearing dates:	11 November 2016
Date of orders:	11 November 2016
Decision date:	11 November 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW – Sentence- Use carriage service to groom a person under the age of 16 years – Police assumed online identity of 13 year old girl – No young person harmed
Legislation Cited:	Crimes Act
Cases Cited:	R v De Simoni. (1981) 147 CLR 383
Category:	Sentence
Parties:	The Crown William Nguyen
Representation:	Counsel: S Schaudin - Offender Solicitors: Director of Public Prosecutions
File Number(s):	2014/361974